r. 1937 w. schiller street - innocence...
TRANSCRIPT
No. 2-14-1059
IN THE APPELLATE COURT OF ILLINOIS SECOND JUDICIAL DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) )
Respondent-Appellee, ) Appeal from the Circuit Court ) of Winnebago County )
v. ) ) Honorable Joseph G. McGraw, ) Chief Judge presiding
JOHN HORTON, ) ) No. 93 CF 1991
Petitioner· Appellant. ) )
BRIEF OF AMICUSCURIAE THE INNOCENCE NETWORK IN SUPPORT OF PETITIONER-APPELLANT
Julia T. Rickert 1937 W. Schiller Street Chicago, Illinois 60622 [email protected] (312) 399-9234
Robert R. Stauffer Michael A Scodro KaraL. Kapp JENNER & BLOCK LLP 353 N. Clark Street Chicago, Illinois 60654 [email protected] (312) 222-9350
Counsel for Amicus Curiae The Innocence Network
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................... ii
INTEREST OF AMICUS CURIAE .......................................................... 1
SUMJ\.1ARY OF ARGUMENT ................................................................... 2
ARGUMENT ............. -................................................................................ 3
I. Well-recognized markers inform the reliability of a person's confession to a crime ........................................................................... 3
A. Several key factors inform the reliability of confession evidence .......................................................................................... 3
B. Numerous cases have involved third-party confessions that were later proven truthful. .................................................... 8
II. The English confessions contain key hallmarks of reliability, while Mr. Horton's confession does not ............................................. 9
III. Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability ..................................................................... 13
TABLE OF AUTHORITIES
Page(s) CASES
Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................................................ 8
Bruton v. United States, 391 U.S. 123 (1968) .......................................................................... 13, 14, 15
Chambers v. Mississippi, 410 U.S. 284 (1973) .................................................................................... 4, 5
Corley v. United States, 556 U.S. 303 (2009) .................................................................................... 3, 4
People v. Coleman, 2013 IL 113307 ............................................................................................. 13
OTHER AUTHORITIES
Innocence Network Releases Report on 2013 Exonerations, ava11able at http://www.innocenceproject.org/news ·events· exonerations/innocence·network-releases-report-on-2013-exonerations ................................................................................................... 1
Alexandra Natapoff, Comment: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U.L. REV. 107 (2006) ............................................................................................................. .'4
Brandon L. Garrett, Contaminated Confessions Revisited, 101 VA. L. REV. 395 (2015) .............................................................................................. 6
Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051 (2010) .............................................................................. 5, 6, 7, 16
Fred E. Inbau et al., Criminal Interrogations and Confessions, 340 (5th ed. 2013) .......................................................................................... 4, 6, 7
Gisli H. Gudjonsson, "Convicting the Innocent": False Confessions & Correcting Injustices, 46 New Eng. L. Rev. 689 (2012) ...................... passim
Jon B. Gould and Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J. CRIM. L. & CRIMINOLOGY 825 (2010) ............................................................... 3, 4, 5, 7, 8
11
Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291 (2006) ......... 15, 17
Richard A. Leo & Richard J. Ofshe, Criminal Law: The Consequences of False Confessions: Deprivations of Liberty & Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429 (1998) .............................................................................. 14
Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 STUD. L. POL. & Soc'y 189 (1997) ............................ 4, 5, 6, 8
Saul M. Kassin and Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469 (1997) ......................................... 13
Saul M. Kassin, Why Confessions Trump Innocence, 67 AM. PSYCHOL.
431 (2012) ······································································· 13, 14, 15, 16, 17, 18
Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891 (2004) ........................... passim
111
INTEREST OF AMICUS CURIAJ!J
The Innocence Network, Inc. (the "Network") is an affiliation of
organizations that provides pro bono legal and investigative services to
convicted individuals seeking to prove their innocence. The Network
currently has 65 member organizations representing hundreds of prisoners
with innocence claims in all 50 states and the District of Columbia, as well as
in countries around the world. The work and dedication of the Network's
member organizations has led to the exoneration of many wrongfully
convicted ·prisoners, 31 in 2013 alone.2 To date, the Network has helped
exonerate over 200 innocent persons, and the Network has served as counsel
in the majority of these cases. The Network also works to redress the causes
of wrongful convictions. Because false confessions often play a key role in
wrongful convictions, the Network has a strong interest in ensuring that
courts do not misapply eyidentiary rules in a manner that insulates such
confessions from rebuttal.
1 Amicus certifies that no counsel for a party authored this brief in whole or in part. No person or entity other than amicus and its counsel made any monetary contribution to the preparation or submission of this brief. 2 Innocence Network Releases Report on 2013 Exonerations, available at http://www.innocenceproject.org/news·events·exonerations/innocence· network·releases·report·on·2013·exonerations.
SUMMARYOFARGUMENT
The Innocence Network submits this brief in support of Mr. Horton to
provide the Court with information on the indicia of reliability applicable to
confession evidence, and to highlight the importance of considering
exculpatory third·party confession evidence that has substantial indicia of
reliability.
As discussed below, confession evidence is not inevitably reliable: there
are true confessions and false confessions. Several well ·recognized markers
inform the reliability of a confession, including whether it was spontaneous,
repeated, and made without any promise of reward, or rather made during
police interrogation under psychologically coercive circumstances. Reliability
also turns on the degree to which the details of a confession are consistent
with known facts of the crime, and a confessor's susceptibility to making false
admissions. As these markers indicate, many reliable confessions can and do
arise outside the context of police interrogation-where there is a diminished
likelihood of coercive circumstances. As the cases discussed below
demonstrate, many third·party confessions have been proven to be true while
the defendant's admitted, psychologically coerced confession turned out to be
false.
In this case, Clifton English's confession contains many hallmarks of
reliability, while there is much to suggest that John Horton's confession is
unreliable. Where, as here, the prosecution's case rests entirely on credibility
assessments, and in light of the significant risk of confirmation bias inherent
2
in convictions obtained primarily through confession evidence, it is important
to protect the ability to introduce exculpatory, third·party confession
evidence. The exclusion of such evidence is unconstitutional and unjust, for it
undermines an innocent defendant's ability to educate the jury with facts
needed to make a comprehensive credibility assessment and identify the real
culprit.
ARGUMENT
I. Well-recognized markers inform the reliability of a person's confession to a crime.
A. Several key factors inform the reliability of confession evidence.
Some confessions are true, and some are false. 3 Through careful
comparison of both types, scholars have identified several markers that tend
to indicate whether a confession is more or less reliable.
Voluntariness. One key indicator that a confession is reliable is that
the confessor made the inculpatory statement voluntarily, rather than as the
result of coercive interrogation. "The primary cause of police-induced false
confessions is the use of psychologically coercive police interrogation
methods."4 The Supreme Court has similarly recognized the "mounting
empirical evidence that theO pressures [of custodial police interrogation] can
3 See Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post·DNA World, 82 N.C. L. REV. 891, 906·07 (2004) (study of 125 proven false confession exonerations from the post· Miranda era).
4 Jon B. Gould and Richard A. Leo, One Hundred Years Later: Wrongful Convictions after a Century of Research, 100 J. CRIM. L. & CRIMINOLOGY 825, 846 (2010).
3
induce a frighteningly high percentage of people to confess to crimes they
never committed." Corley v. United States, 556 U.S. 303, 320-21 (2009)
(citation omitted). Psychologically coercive methods include prolonged
interrogation, for example interrogation sessions lasting more than six
hours, 5 involving deprivation of food, water, sleep, or access to restroom
facilities, suggestions or promises of leniency, promises that the suspect can
go home upon confessing, threats of harsher treatment absent a confession,
falsely informing the suspect that the police have inculpatory evidence
implicating the suspect, or refusing to accept a suspect's repeated denials of
culpability.6 The combined presence of multiple methods, in particular, can
result in a psychologically coercive atmosphere, which undermines the
reliability of a confession obtained in this manner.
Spontaneous, repeated, and without reward. A confession is more
reliable when it occurs freely, outside a police interrogation and without the
prospect of receiving any benefit in exchange for that admission. 7 The
5 Drizin & Leo, supra n.3, at 948.
6 Gould & Leo, supra n.4, at 846·47; Fred E. Inbau et al., Criminal Interrogation and Confessions, 340, 343-44, 347, 350-51 (5th ed. 2013).
7 Richard J. Of she & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 STUD. L. POL. & Soc'y 189, 204·05, 220 (1997); see also Chambers v. Mississippi, 410 U.S. 284, 300 (1973) (recognizing that spontaneity of confession provided assurance of reliability). Cf. Alexandra Natapoff, Comment: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U.L. REV. 107, 108-09 (2006) (explaining how prospect of receiving benefits can cause criminal informants to implicate others falsely).
4
statement is even more reliable when the confessor repeats it to multiple
people. See Chambers v. Mississippi, 410 U.S. 284, 300-01 (1973) (recognizing
fact that statement was repeated to multiple individuals as indicator of
reliability).
Det1111 and Consistency with Facts of the Crime. The quality of the
confessor's narrative provides an additional indicium of reliability.8 A
confession is more reliable if it describes facts unique to the crime that only
the confessor would know, and if it leads the police to uncover evidence of
these facts.9
The fact that the narrative of a suspect's confession is highly detailed
and contains facts consistent with the crime does not alone indicate that the
confession is reliable, however. In some cases "[p]olice detectives use the post-
admission phase of interrogation to influence, shape, and sometimes even
script the suspect's narrative. . . . Police detectives help create false
confessions in the post-admission narrative phase of interrogation by
pressuring the suspect to accept a particular account and suggesting crime
facts to him, thereby contaminating the suspect's post-admission narrative."10
Indeed, in many cases "exonerees [have been] reported to have provided
8 Ofshe & Leo, supra n.7, at 197-99, 217.
9 Id. at 238.
10 Gould & Leo, supra n.4, at 849; see also Gisli H. Gudjonsson, "Convicting the Innocent": False Confessions & Correcting Injustices, 46 NEW ENG. L. REV. 689, 690-91 (2012).
5
detailed statements that included facts likely to be known only by the
culprit."11 A recent study found that "[a]ll but two of ... twenty·six [false]
confessions included crime scene details that supposedly were corroborated
by crime scene information that only investigators and the culprit could have
known." 12 This is the result of contamination-where the police "leakO and
feedO facts" to the suspect. 13
Accordingly, "[clrucial to assessing the reliability of the postadmission
narrative provided during an interrogation is analysis of what suspects say
when they are not prompted by law enforcement. An innocent person,
without prompting'' or prior contamination "should not be able to volunteer
specific crime information."14 Additionally, research shows that whether
statements made in the confessor's own words are unqualified (e.g. "I did"), or
hedged (e.g. "I probably did"), may indicate whether a confessor's statements
were fed by the police or volunteered by the confessor.15 Unqualified
statements made in the confessor's own words may provide some evidence of
11 Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV.
1051, 1066 (2010); Gudjonsson, supra n.10, at 690·91.
12 Brandon L. Garrett, Contaminated Confessions Revisited, 101 VA. L. REV.
395, 409, 402, 405·06 (2015).
13 Garrett, supra n.11, at 1066.
14 Id. at 1087. The corollary to this principle is that a reliable voluntary confession should not contain fictitious details that do not fit the actual crime. Inbau et al., supra n.6, at 349.
15 Ofshe & Leo, supra n.7, at 218.
6
reliability, while hedged statements suggest that the confessor may not have
an independent recollection of the events.
Suggestibility. A final factor useful in assessing the reliability of an
inculpatory statement is the degree to which the speaker is suggestible or
compliant. "Individuals who are highly suggestible or compliant are more
likely to confess falsely." 16 Three well-recognized groups that are particularly
prone to suggestibility and compliance are juveniles, the intellectually
disabled, and the mentally ill, although fully competent adults may also have
personalities that render them more suggestible.17
Scholars and law enforcement recognize that juveniles are particularly
susceptible to confessing falsely. 18 "[J]uveniles may be more vulnerable to
police pressure during interrogations .... [because they] are, of course, less
mature than adults and have less life experience on which to draw. As a
result, they tend to be more naive and more easily intimidated by police
power, persuasion, or coercion."19 Juveniles "are thus less equipped to cope
with stressful police interrogation and less likely to possess the psychological
resources to resist the pressures of accusatorial police questioning."20
16 Gould & Leo, supra n.4, at 847. 17 Id. at 847-48.
18 Id.; see also Garrett, supra n.11, at 1064; Gudjonsson, supra n.10, at 700; Inbau et al., supra n.6, at 352.
19 Drizin & Leo, supra n.3, at 944.
20 Id.; see also id. at 968-69.
7
Scholars similarly recognize the intellectually disabled and mentally ill
as two groups that are particularly vulnerable to confessing falsely. 21
Academics and jurists alike have recognized that "the mentally retarded
possess personality characteristics that increase their risk of interrogation-
induced false confession."22
B. Numerous cases have involved third-party confessions that were later proven truthful.
Third-party confessions have led to at least a dozen exonerations that
DNA evidence later verified. The specifics of these cases, summarized in the
Appendix, show that truthful third-party confessions are marked by the same
factors that characterize reliable confessions generally. Many of these
verified third-party confessions also share additional indicators of reliability.
These confessions are relevant to Petitioner's case because, as detailed in
Part II, many of their shared characteristics are found in the English
confession.
Some recognized hallmarks of reliability are common to all of the
verified third-party confessions. Each confession was apparently
spontaneous. Few if any came during a custodial interrogation. All of the
confessors were adults, and no available information hints that any of them
21 Drizin & Leo, supra n.3, at 919-20, 973-74; Gould & Leo, supra n.4, at 847; Gudjonsson, supra n.10, at 700; Ofshe & Leo, supra n.7, at 212-14.
22 Drizin & Leo, supra n.3, at 919; see also Atkins v. Virginia, 536 U.S. 304, 321 (2002) ("[m]entally retarded defendants in the aggregate face a special risk of wrongful execution").
8
suffered from mental illness or disability. Nor is there any indication that
any received promises in advance of their confessions. And in all cases the
third·parties who truthfully confessed had been in a position to commit the
crimes in question, even if investigators did not realize it.
Many of the verified third ·party confessions exhibit additional
recognized markers of reliability. For example, both Milton Jackson and
Jerry Wayne Johnson confessed repeatedly over the course of several years,
while Matthew Brown, Mark Christie, Rondell Love, and Bobby Poole all
made their admissions to multiple people. Joseph Miller, who led
investigators to the landfill where the victim's body had been found, is an
example of someone who displayed special knowledge of the crime he
admitted committing. Achim Marino is another such example: He is reported
to have revealed where to find his victim's stolen belongings.
Finally, in at least three-quarters of the cases, the third·party who
confessed had committed other crimes of the same nature. Although these
other crimes often would qualify as propensity evidence, it provides a
powerful reason not to disregard the confessions.
IL The English confessions contain key hallmarks of reliability, while Mr. Horton's confession does not.
Clifton English has long claimed that he, rather than his cousin John
Horton, is guilty of the 1993 murder of a patron at the Charles Street
McDonald's in Rockford, Illinois, during the course of a robbery. Repetition is
9
a hallmark of reliability, and English has confessed to this crime many times,
including:
• to at least four family members and his ex-wife sometime before John Horton's t~ial (R. 1268-69, 1289-92; C. 943);
• to John Horton's defense team in 1995 (R.1814-15; C. 886);
• in a 2006 letter to Paul Logli, former Winnebago County State's Attorney (C. 792);
• in a 2008 notarized statement to the Internal Affairs Division of Hill Correctional Center, in which he accurately described the victim as wearing a Hard Rock Cafe jacket (C. 789);
• to his psychiatrist at Hill Correctional Center, Dr. James E. Tiller, also in 2008 (C. 475-76);
• in a voluntary, detailed 2013 affidavit to Horton's attorneys (C. 414-21, 459-63).
English's confessions exhibit other hallmarks of reliability as well. He
confessed voluntarily and spontaneously, without threats or promises from
interrogators or other parties. He was an adult each time he confessed-he
was 24 at the time of the McDonald's murder and 44 at the time of his most
recent, detailed confession (C. 932, 967)-and there is no evidence that
mental infirmity of any kind prompted his confessions. And English's most
recent confession is exceptionally detailed and accurate, as shown by
contemporary reports and other evidence. Details in English's 2013 affidavit
include:
• the location and appearance of patrons (e.g., a "biker-looking
man," "old people sitting at the back," "a group of teenagers"
who ran out the east-side door) (C. 461);
10
• an accurate description of the manager, including that she was
not in uniform but rather in plain clothes (C. 461);
• an accurate description of where the victim was shot (left side of
his face, near his eye) (C. 461);
• that he stole around $500 from the safe (C. 462);
• details of his escape (e.g., that he ran past the drive·thru lane
with his gun in one hand and a bag in the other and saw a white
woman in her car, an account that the woman who was in the
drive·thru lane confirms) (C. 462, 416); and
• a comprehensive and accurate map of the crime scene. (C. 468.)
English and his confessions share other significant characteristics with
the Appendix cases. Like at least three·quarters of the true perpetrators in
those cases, English has committed another crime similar to the one he
admits to in his confession in this case, another murder in the course of
robbing a restaurant. (English is currently imprisoned for that murder (C ..
967).) Moreover, like Mark Christie, whose third-party confession has been
verified, English was an early suspect in the McDonald's murder and gave
investigators a false alibi. (C. 926, 931.) And the confession of another of the
true perpetrators identified in the Appendix-Milton Jackson-undermines
any assumption that English's confession must be false simply because it
could help a member of his family. Jackson, following his brother Willie's
11
conviction for rape, admitted that he, not his brother, had had sex with the
victim, an admission that DNA testing later verified.
In contrast to English's multiple confessions to the McDonald's
murder, John Horton's confession lacks key hallmarks of reliability. Far from
repeating his confession, Horton soon recanted it and has maintained his
innocence ever since. Additionally, Horton was a juvenile at the time of his
interrogation (C. 932) and therefore more likely to confess falsely. And
Horton was interrogated for at least six hours before he confessed (C. 940-46),
another indicator of unreliability.
Finally and crucially, Horton's confession was far less detailed than
English's confessions, and many of the details Horton did provide were
contradicted by witness accounts and evidence from the crime scene. For
example, Horton recounted dropping several items while fleeing the scene,
including a bandana, coat, shirt, and almost all of the stolen money. (C. 955.)
Yet police officers' thorough search of the crime scene and surrounding area
within half an hour of the crime turned up none of these things. (R. 924; C.
936.) Similarly, Horton told his interrogators that the shooting victim had
been dressed like a McDonald's employee when in reality the victim wore
street clothes, including a Hard Rock Cafe jacket, as English correctly
recounted. (C. 789, 954-55.) Horton's confession, moreover, includes almost no
other description of the people in the restaurant, whereas English describes
what both the victim and the manager were wearing, as well as the
12
appearance of several other patrons in the restaurant. (Compare C. 954-55 to
C. 461, 789.) Unlike English's detailed, voluntary, repeated confessions, the
obvious inaccuracies in Horton's confession undermine the reliability of this
statement.
III. Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability.
The Court must determine the likely result of a retrial. People v.
Coleman, 2013 IL 113307, if97. In this case, the state presented no physical
or scientific evidence linking Mr. Horton to the crime, so the case hinged
entirely on whose version of events the trier of fact chose to credit. Yet, the
trier of fact learned of only one of the two, inconsistent versions of who
committed the crime. Without full information, the trier of fact cannot
perform its role properly.
Not only must a trier of fact have access to reliable third·party
confessions like English's to assess credibility, but such access is also
essential to offset the "confession effect." Confession evidence is exceedingly
persuasive to jurors.23 In fact, "[w]ith the exception of being captured during
23 Saul M. Kassin, Why Confessions Trump Innocence, 67 AM. PSYCHOL. 431, 433-34 (2012); Gudjonsson, supra, n.10, at 690 (noting that even when retracted, false confessions "still constitute very powerful factors that typically result in a conviction"); Saul M. Kassin and Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469, 469, 481 (1997) (finding that "confession evidence has a greater impact on jurors-and is seen as having a greater impact by jurors-than other potent types of evidence")(emphasis in original); see also Bruton v. United States, 391 U.S. 123, 139 (1968) (recognizing that a "defendant's own confession is probably
13
the commission of a crime . . . a confession is the most incriminating and
persuasive evidence of guilt that the State can bring against a defendant."24
"Confession evidence (regardless of how it was obtained) is so biasing that
juries will convict on the basis of confession alone, even when no significant
or credible evidence confirms the disputed confession and considerable
significant and credible evidence disconfirms it."25 Confessions have more
impact on jury verdicts than do many other powerful forms of evidence, as
jurors do not adequately discount confession evidence-even when a
confession is retracted and shown to be the result of coercion. 26
For example, a study of proven false confessions elicited between 1971
and 2002 showed that roughly four out of five now·exonerated confessors who
went to trial were convicted, despite exonerating evidence that cast doubt on
their confessions.27 As the study's authors conclude, "in the overwhelming
majority of cases that go to trial, confessions (even if they are demonstrably
the most probative and damaging evidence that can be admitted against him").
24 Drizin & Leo, supra n.3, at 921. 25 Id. at 923. 26 Kassin, supra n.23, at 433-34; see also Drizin & Leo, supra n.3, at 961-62 ("[C]onfession evidence substantially biases the trier of fact's evaluation of the case in favor of the prosecution and conviction-exercising [a] profound and context-resistant impact on jurors."); Gudjonsson, supra n.10, at 690; Richard A. Leo & Richard J. Ofshe, Criminal Law: The Consequences of False Confessions: Deprivations of Liberty & Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 429-30 (1998).
27 Drizin & Leo, supra n.3, at 960-61; see also Kassin, supra n.23, at 435.
14
false) almost always seal the defendant's fate ... commonly, by leading a
judge or jury to wrongfully convict the factually innocent defendant."28
There are several reasons why some triers of fact place undue weight
on even unreliable confession evidence: (1) the concept of false confessions is
counter-intuitive, meaning triers of fact often do not believe that they ever
would confess falsely and thus cannot fathom why anyone else would; (2)
false confessions are often highly detailed, giving them an appearance of
reliability that is often undeserved because the details were either generally
known or intentionally or inadvertently fed to the suspects by their
questioners; and (3) once a confession is believed, confirmation bias reinforces
the perception that it is true.29
The first factor, the apparent illogic of false confessions, gives
confession evidence credibility with judges and juries alike. "Most people
reasonably believe that they would never confess to a crime they did not
commit, so they evaluate others accordingly, do not understand the influence
of police interrogation practices, and have only a rudimentary understanding
28 Drizin & Leo, supra n.3,at 961.
29 Kassin, supra n.23, at 433·35, 437, 440 (noting that phenomenon of false confessions does not comport with layperson's common sense and that confessions trigger "confirmation processes" that bias interpretation of other evidence); Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 292·95 (2006); see also Bruton, 391 U.S. at 129 ("[Confession evidence] cannot be wiped from the brains of the jurors.") (quoting Delli Paoli v. United States, 352 U.S. 232, 247 (1957) (Frankfurter, J., dissenting)).
15
of the dispositional and situational factors that would lead someone innocent
to confess."30
The confidence in confession evidence is particularly strong where, as
occurs in many false confessions, the confession contains vivid details of what
the suspect allegedly did.s1 Indeed, detailed "narrative confessions can be so
powerful as to overwhelm contradictory forensic evidence," including
exculpatory DNA evidence.32 But the level of detail in a suspect's confession is
not always an accurate barometer of its reliability. As Garrett explains, the
details in false confessions are often the product of police contamination-the
inadvertent leaking of facts to the suspect through the use of leading
questions, showing crime scene photos to suspects, taking them to visit crime
scenes, and other such procedures. Confession contamination leads some
innocent suspects to "offerO surprisingly rich, detailed, and accurate
information" about the crime and cloaks their confessions in an aura of
reliability that is undeserved. 33 Because judges and jurors "simply fail to
appropriately discount false confession evidence . . . [such] evidence is highly,
if not inherently, prejudicial to the fate of any innocent defendant in the
American criminal justice system."34
3° Kassin, supra n.23, at 434.
31 Id. at 436.
32 Id.
33 Garrett, supra n.11, at 1054; Gudjonsson, supra n.10, at 690-91.
34 Drizin & Leo, supra n.3, at 962.
16
Once an individual believes confession evidence to be true,
confirmation bias kicks in, further strengthening a decision-maker's faith in
the veracity of the confession. Such confirmation bias can have a dramatic
impact on the police investigation phase and then infiltrate every stage of the
proceedings that follow, from the gathering of evidence to the disposition of
appeals.ao
With regard to the police investigation phase, as Kassin explains,
"[o]nce a suspect confesses, police often close the investigation, deem the case
solved, and overlook exculpatory information--even if the confession is
internally inconsistent, contradicted by external evidence, or the product of
coercive interrogation." (citations omitted.)3s This trust in the integrity of
confessions "may extend to prosecutors as well, some of whom express
skepticism about false confessions and ... refuse to admit the possibility of
their falsity even after DNA testing has unequivocally excluded the
confessor." (citation omitted.)31
A confession also may taint both expert and lay witness testimony,
leading to false corroboration of the confession. For example, polygraph and
fingerprint examiners are more likely to find markers of guilt in polygraph
results and inculpatory fingerprint evidence when the examiner has been told
35 See Kassin, supra n.23, at 437-440; see also Findley & Scott, supra n.29, at 295 (noting that "tunnel vision infects all phases of criminal proceedings").
36 Kassin, supra n.23, at 433; Drizin & Leo, supra n.3, at 921-22.
37 Kassin, supra n.23, at 433.
17
that the suspect has confessed.as In addition, a majority of eyewitnesses who
previously implicated one individual will confidently change their
identification testimony after being told that another suspect confessed.ss It is
therefore not surprising that, in a study of documented cases of wrongful
conviction, 63% of wrongful convictions involving false confessions also
involved improper forensic science, 29% involved mistaken eyewitness
identifications, and 19% involved untruthful informants.4o Thus, as Kassin
explains, false "confessions can spawn other incriminating evidence, creating
an illusion of corroboration."41
Preliminary studies also suggest that confirmation bias can
surreptitiously sneak into the adversarial process, leading to higher instances
of ineffective lawyering by defense attorneys and of prosecutorial
misconduct. 42
There is a simple solution to these problems in this case. For the same
reason that jurors find inculpatory confessions particularly persuasive, the
evidence most capable of combating the biasing effect of inculpatory
38 Kassin, supra n.23, at 437.
39 Id.
40 Id
41 Id at 438.
42 Id at 438-39 (2012 archival analysis of first 273 DNA exoneration cases from Innocence Project files found that false confession cases were more likely to involve bad defense lawyering than nonconfession cases (9.09% versus 3.38%) and more likely to involve government misconduct (21.21 % versus 15.46%)). '
18
confession evidence is reliable exculpatory third·party confession evidence.
Particularly in a case, such as Mr. Horton's, that turns entirely on credibility
assessments, to enable the trier of fact to evaluate the strength of an
inculpatory confession fairly, it is important to protect a defendant's ability to
introduce exculpatory third·party confession evidence that undermines the
prosecution's theory. Only in this way are defendants assured that they can
present a coherent and credible narrative of actual innocence to the trier of
fact. Therefore, Mr. Horton should have been granted leave to file a post·
conviction petition based upon evidence of Clifton English's highly-detailed,
accurate, and reliable exonerating confessions. English's confessions-
entirely exculpatory to Mr. Horton-contained multiple hallmarks of
reliability. Depriving Mr. Horton of the ability to present evidence of
English's repeated lone·wolf confessions made it impossible for Mr. Horton to
present a complete defense.
JULIA T. RICKERT 1937 W. Schiller Street Chicago, Illinois 60622 [email protected] (312) 399·9234
Respectfully submitted,
ROBERT R. STAUFFER MICHAEL A. SCODRO KARAL.KAPP JENNER & BLOCK, LLP 353 N. Clark Street Chicago, Illinois 60654 rs ta [email protected] (312) 222-9350
Counsel for Amicus Curiae The Innocence Network
19
CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 345,
341(a) and (b). The length of this brief, excluding the pages containing the
Rule 341(d) cover, the Rule 341(h)(l) statement of points and authorities, the
Rule 341(c) certificate of compliance, and the certificate of service, is 19
pages.
~t<.S~/~ Robert R. Stauffer
APPENDIX
APPENDIX
CASES INVOLVING THIRD-PARTY CONFESSIONS THAT WERE LATER VERIFIED BY DNA TESTINGt
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) (the true
perpetrator) Based on supposed Brown had been charged with know ledge of the crime murdering two women when fellow scene and unreliable inmates informed police that Brown was forensic evidence, Johnson claiming to have murdered Johnson's was convicted in Louisiana girlfriend as well. See State v. Johnson, in 1986 of murdering his 23 So.3d 878 (La. 2009). Prosecutors girlfriend. More than 20 suppressed this exculpatory evidence. years later, DNA testing showed that Matthew Despite not knowing of Brown's
Matthew Anthony Brown, who had previously confessions, Johnson's defense attorneys Brown Johnson confessed to the murder, called Brown to testify at Johnson's trial
was the true perpetrator. because one of the women Brown was The state dismissed the charged with murdering had been killed charges against Johnson in the same room as Johnson's while he awaited retrial. girlfriend. Brown invoked his right
against self-incrimination. Brown was later convicted of the two other murders, and in 2010 DNA testing proved that his confessions to the murder of Johnson's girlfriend were truthful.
t Except where noted, information is taken from the National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/about.aspx.
YEARS IN
PRISON
1986-2010
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S)
EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON
perpetrator) Sterling falsely confessed to Christie had been a suspect in the the 1988 beating death of a woman's murder but had given police a 74-year-old New York false alibi, which they accepted. After woman. Based on the Sterling's conviction but before his confession, a jury found him sentencing, Sterling's attorneys learned
Mark Christie Frank Sterling guilty of her murder. DNA that Christie had confessed to friends 1992-testing in 2006 proved that that he was the person who had killed 2010 the actual perpetrator was the victim. Sterling filed a motion to set Mark Christie, who had aside the guilty verdict, but the judge previously confessed to the did not credit Christie's admissions. crime. After the 2006 DNA testing tied Christie
to the crime, he again confessed. Cruz and Hernandez were Shortly after Cruz and Hernandez's first wrongfully convicted of trial, a serial killer, Brian Dugan, raping and murdering a 10- confessed to police that he had year-old Illinois girl based committed the rape and murder for on false testimony from which they had been convicted. Evidence
Rolando Cruz investigators. Following a of Dugan's guilt nonetheless was
Brian Dugan & Alejandro second re-trial in 1995, Cruz excluded from Cruz and Hernandez's 1985-
Hernandez was acquitted. The charges retrials. 1995 against Hernandez were then dismissed. DNA testing more than a decade after
Cruz and Hernandez's release proved that Dugan's confession had been truthful. He pleaded guilty in 2009 to that rape and murder.
2
THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS
CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON
peroetrator) Willie Jackson was Days after Willie's conviction, Milton wrongfully convicted of rape confessed that it was he and not Willie in Louisiana in 1989 based who had sex with the victim on the night on mistaken eyewitness in question. (He claimed the sex was testimony and unreliable consensual.) Milton continued to admit forensic evidence. DNA to his involvement thereafter, including
Milton testing in 2006 proved that in an affidavit and by testifying at
Jackson Willie Jackson Willie's brother Milton, who Willie's habeas hearing. Jackson v. Day, 1989-had previously admitted to No. CIV.A.95-1224, 1996 WL 225021 2006 having sex with the victim, (E.D. La. May 2, 1996). was the actual perpetrator. Willie was granted a new Milton was serving a life sentence for trial, and the state then another rape by the time DNA testing dropped all charges against proved that he was indeed the person him. who had had sex with Willie's supposed
victim.
3
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE YEARS
CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) IN
(the true PRISON peroetrator)
Based on mistaken Johnson, a Texas prisoner serving life eyewitness testimony, Cole sentences for multiple sexual assaults, was wrongfully convicted in sent letters in 1995 to judges and a 1986 of rape. He died in prosecutor, confessing to the crime for prison in 1999. DNA testing which Cole had been convicted. These in 2008 posthumously letters were ignored.
Jerry Wayne Timothy Brian cleared him of the crime and 1986-Johnson Cole implicated Jerry Wayne After Cole's death, Johnson again 2009
Johnson, who had confessed in a letter to a judge. This previously confessed to the time Cole's family and the Innocence crime. Project of Texas learned of the
confession and sought DNA testing, which confirmed that Johnson's confessions were truthful.
4
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE YEARS
CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S)
IN (the true PRISON
peroetrator) Based on mistaken Not long after the conviction of Hayes eyewitness testimony and and Matthews, Love, who was in prison Hayes' s false confession, 1 7- for another murder, confessed to fellow year-old Hayes and inmates that he had also committed the Matthews were wrongfully murder for which Hayes and Matthews 1998-convicted of murdering a had been convicted. The confession
2007 store clerk. Both boys prompted attorneys for Matthews to (Hayes)
Travis Hayes & suffered from intellectual investigate Love. DNA testing
Rondell Love deficits. ultimately proved that Love's confession Ryan Matthews had been truthful.
1999-2004
DNA testing ultimately (Matt he proved that the true ws) perpetrator was Rondell Love, who had previously confessed to the crime. Hayes and Matthews were eventually cleared.
5
THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS
CONFESSOR EXONEREE(S) IN (the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON
peroetrator) Danziger and Ochoa were Marino, who was serving a life sentence wrongfully convicted in for a series of aggravated robberies, Texas in 1990 of raping and confessed in a 1998 letter to Texas Gov. murdering a restaurant George W. Bush that he had committed employee. Ochoa had the crimes for which Danziger and 1990-pleaded guilty after falsely Ochoa had been convicted. Marino's 2002
Richard confessing and then falsely letter reportedly described the location (Danzig Achim Josef Danziger & testified against Danziger. of the victim's stolen belongings. Jim er) Marino Christopher Yardley, Texas Inmate's Confession
Ochoa The pair were released after Slips Through the Cracks, NY Times 1989-DNA testing proved that the (Oct. 17, 2000). 2002 real perpetrator was Achim (Ochoa) Marino, who had previously DNA testing in 2000 confirmed the confessed to the rape and truthfulness of Marino's confession and murder. ultimately led to the release of Danziger
and Ochoa.
6
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S) IN
(the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON
peroetrator) William Kelly, who suffers In 1992, Miller, who had been charged from mental illness, falsely with multiple murders similar to the one confessed to killing a young in Kelly's case, led prosecutors to the woman in Pennsylvania in landfill where the body of Kelly's 1990 and pleaded guilty to supposed victim had been found. Two
Joseph D. William M. the crime. Two years later, other bodies were discovered there. 1990-Miller Kelly, Jr. DNA testing proved that the Miller then confessed to killing the 1993
true perpetrator was Joseph victim in Kelly's case, prompting DNA Miller, who earlier had testing. The testing proved Miller's confessed. Prosecutors confession to be truthful. moved to vacate Kelly's conviction.
7
THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS
CONFESSOR EXONEREE(S) IN (the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON
perpetrator) Cotton was convicted of rape Poole happened to be incarcerated in the in 1985 in North Carolina same wing of the same prison as Cotton. based on mistaken Poole told numerous inmates that he eyewitness testimony .1 He was responsible for the rape that Cotton was granted a retrial in had allegedly committed. After DNA 1987 because exculpatory testing confirmed that Poole's evidence had been admissions were truthful, he pleaded improperly excluded from guilty to that rape. He was also his trial. The evidence was convicted of raping a second woman the that two other women had same night. been assaulted in a similar
1985, Bobby Poole Ronald Cotton
manner as his supposed 1987-
victim on the same night 1995
and in the same area, but one of the victims had identified another man as the perpetrator. State v. Cotton, 351S.E.2d277 (N.C. 1987). Cotton was convicted on retrial, but DNA testing in 1995 showed that the true perpetrator was Bobby Poole, who had previously confessed to the crime.
1 See Jennifer Thompson, 'I Was Certain, but I Was Wrong,' NY Times (June 18, 2000), available at www.nytimes.com/2000/06/18/opinion/i· was·certain·but-i·was·wrong.html.
8
THIRD PARTY FACTS RELATING TO FACTS RELATING TO TRUE YEARS
CONFESSOR EXONEREE(S) EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON
perpetrator) Five teenagers-McCray, Reyes was already a convicted rapist Richardson, Salaam, and murderer when he confessed to Santana, and Wise-falsely having attacked the Central Park jogger. confessed to the brutal 1989 His confession prompted DNA testing, rape of a jogger in Central which proved the confession to be
Antron Park. They were convicted truthful.
McCray, Kevin based on those confessions. The victim, who suffered a
Richardson, severe head injury, had no 1990-Matias Reyes Yusef Salaam,
memory of the attack. 2002 Raymond Santana &
DNA testing in 2002 proved
Korey Wise that the rapist was actually Matias Reyes, who had previously confessed to the crime. The convictions of the young men were overturned on the recommendation of the district attorney.
9
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S) IN
(the true EXONERATION PERPETRATOR'S CONFESSION(S) PRISON
peroetrator) Brown was convicted of a Rickard was in the same prison as 2001 robbery in Brown when a fellow inmate reported to Pennsylvania based on Brown that he had overheard Rickard mistaken eyewitness confessing to the robbery for which testimony. DNA testing Brown had been convicted. DNA testing
Robert eventually tied the crime to confirmed that Rickard's admissions 2002-Rickard Patrick Brown Rickard, who had previously were true. He could not be charged, 2010
confessed. Brown v. Chardo, however, because the statute of No. 1:11-CV-0638, 2013 WL limitations had run. 4082701 (M.D. Pa. Aug. 13, 2013). Brown was granted a new trial, and then the charges were dismissed.
10
THIRD PARTY
FACTS RELATING TO FACTS RELATING TO TRUE YEARS CONFESSOR EXONEREE(S)
EXONERATION PERPETRATOR'S CONFESSION(S) IN (the true PRISON
perpetrator) Kagonyera falsely confessed Rutherford confessed to a federal agent in 2001 to committing a in 2003 that he had committed the murder in the course of a murder to which Kagonyera and robbery. He also implicated Wilcoxson had pleaded guilty. He Wilcoxson, and the two then explained to the agent that he had pleaded guilty to second- committed the crime along with two degree murder in order to other men: Bradford Summey and Lacy
2001-avoid a possible death Pickens. Subsequent DNA testing linked
2011 sentence. Sumney to the crime, corroborating
(Kagony Kenneth
Rutherford's confession. era) The North Carolina
Robert Kagonyera & Innocence Inquiry
Rutherford Robert 2002-Wilcoxson
Commission began 2011 investigating the case in (Wilcoxs 2011 and determined that on) DNA evidence and surveillance video implicated three other men, one of whom had earlier confessed. A panel of three judges declared Kagonyera and Wilcoxson innocent later that year.
11